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The Possibility of Imposing a Fine on Both Parties Due to Unlawful Contract Amendment (Case C-263/19 T-Systems Magyarország) Journal Artikel

Tünde Tátrai

European Procurement & Public Private Partnership Law Review, Jahrgang 17 (2022), Ausgabe 3, Seite 202 - 205

Case C-263/19 T-Systems Magyarország Zrt., BKK Budapesti Közlekedési Központ Zrt. v Közbeszerzési Hatóság Közbeszerzési Döntőbizottság, Judgment of the Court of Justice (Fourth Chamber) of 14 May 2020 Typically, public procurement rules address the preparation of the procedure or the conduct of procedural acts up to the conclusion of the contract. A novelty of the 2014 Directives is that they provide a much wider opportunity for contract amendment, thus the period of performing the contract becomes increasingly emphatic in regulation. CJEU rulings more and more frequently articulate governing interpretations in relation to contract performance in connection with, for instance, the involvement of subcontractors under a public procurement contract. Recently, the CJEU brought an exceedingly important ruling, which considers the relationships of responsibility of the parties in initiating contract amendments. The question does not concern primarily the unlawful amendment of the contract but the issue to what extent the bidder or the contracting party can be made liable for an unlawful contract amendment. In this case, the CJEU regarded it as appropriate to impose a fine on both contracting parties for an unlawful contract amendment.


Substantial Modifications of Public Contracts and Their Consequences: Journal Artikel

European and Belgian Procurement Law Perspectives

Steven Van Garsse, Simon Verhoeven, Alexander Verschave

European Procurement & Public Private Partnership Law Review, Jahrgang 16 (2021), Ausgabe 4, Seite 284 - 294

In this contribution we discuss the consequences of the contract when it has been modified in a substantial manner. On a European level there has been provided in the sanction of the ineffectiveness of the contract, which procedure can be initiated within six months after the change has happend. In Belgian law there is also the sanction of the annulment of the contract, whereby the contract can be declared null, which can be invoked even after the six month period, thus it seems. In this contribution we formulate some critical remarks on the situation in Belgium. Keywords: substantial modifications, sanction of annulment, sanction of ineffectiveness


Contract Modifications and the CJEU: Journal Artikel

The Evolution of Public Procurement Case Law

Ana Lucía Jaramillo Villacís, Ana Isabel Peiró Baquedano

European Procurement & Public Private Partnership Law Review, Jahrgang 16 (2021), Ausgabe 1, Seite 78 - 88

Before the publication of the 2014 Public Procurement Directives, the rules on the modification of contracts were not codified. The legislator considered necessary to add a whole new section to clarify the conditions under which modifications to a contract during its performance require a new procurement procedure, taking into account the relevant case law of the Court of Justice of the European Union (CJEU). According to the CJEU rulings, a new procurement procedure is required in case of material changes to the initial contract, in particular to the scope and content of the mutual rights and obligations of the parties, including the distribution of intellectual property rights. Such material changes demonstrate the parties’ intention to renegotiate essential terms or conditions of that contract. To understand the line of reasoning of the Court, this article provides a summary of the landmark cases before, during and after the implementation of the 2014 Directives. Keywords: contract modifications; substantial amendment; material modification; illegal award; essential conditions; renegotiations


EU Public Procurement Law: Journal Artikel

Amendments of Public Works Contracts After the Award due to Additional Works and Unforeseeable Circumstances

Vincent P. Wangelow

European Procurement & Public Private Partnership Law Review, Jahrgang 15 (2020), Ausgabe 2, Seite 107 - 123

In 2014, a newly enacted set of directives sought to reform the EU Public Procurement Regime, promoting stronger harmonisation but also more flexibility in procurement activities throughout the European Union. Amendments to public contracts after the award have long been a grey area, both for contracting authorities and tenderers alike. However, given the economic importance of public procurement for the European economy, the sound functioning of procurement rules is key. Hence, the article aims to provide a comprehensive evaluation of the new provisions, especially as far as amendments to public works contracts due to the necessity of additional works (following, inter alia, inadequate planning) and unforeseeable circumstances (typically entailing delays, cost overruns etc.) are concerned. In this respect, drawing on sources from legal scholarship of different EU Member States (eg, Germany, France, Spain) and the UK, this article provides an analysis of the rules on post-award amendments to public contracts with an emphasis on Article 72 of Directive 2014/24/EU. To identify the underpinning ideas of these rules, the article considers policy goals and constraints as well as the relevant case law of the Court of Justice of the European Union. Keywords: public works contracts, EU public procurement, amendments, modifications, additional works and unforeseeable circumstances, Directive 2014/24/EU


Techniques and Instruments for Aggregated Procurement in the New EU Directives Journal Artikel

Framework Agreements and Dynamic Purchasing Systems

Miguel Neiva de Oliveira

European Procurement & Public Private Partnership Law Review, Jahrgang 12 (2017), Ausgabe 2, Seite 177 - 182

Among the several themes introduced by the new European directives, the present article focuses on highlighting the procedure of public procurement through Framework Agreements and Dynamic Purchasing Systems. We propose to briefly identify and discuss some important issues regarding these two instruments." Keywords: Aggregated Procurement; Special Proceeding Instruments; Substantial Modification of a Contract; Framework Agreement; Central Purchasing Bodies.

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